Delhi scores, Devyani still in grey zone

K.P. NAYAR

Devyani Khobragade

Washington, March 13: When S. Jaishankar, India’s new ambassador in Washington, arrives in New Delhi for consultations on Tuesday on his maiden visit after presenting credentials to President Barack Obama, he will have an opportunity to rework Indo-US relations on a clean slate.

US district judge Shira Scheindlin’s order yesterday dismissing the case of visa fraud and felony against Devyani Khobragade, India’s former deputy consul-general in New York, has cleared the way for a fresh start in bilateral relations with America, ending the biggest rift between the two countries since Atal Bihari Vajpayee proclaimed his country and America “natural allies” in 2000.

The stage for ending a virtual freeze in Indo-US official contacts since Khobragade’s arrest and strip-search in December was set by Nisha Desai Biswal, the state department’s assistant secretary of state for south and central Asia, during a visit to New Delhi last week.

Quickly on the heels of Biswal’s talks in New Delhi which were postponed once, Ernest Moniz, the US energy secretary, visited India on the eve of the court decision and held an energy dialogue with Montek Singh Ahluwalia, deputy chairman of the Planning Commission.

The visit by Moniz, a member of Obama’s cabinet, had been called off at the height of the crisis caused by Khobragade’s arrest, highlighting the bilateral freeze.

The judge relied on a technicality rather than the merits of the case against the diplomat to grant her motion for dismissal.

“Khobragade’s motion to dismiss the indictment on the ground of diplomatic immunity is granted. Khobragade’s conditions of bail are terminated and her bond is exonerated. It is ordered that any open arrest warrants based on this indictment must be vacated,” the judge said in a 14-page order.

Therefore, yesterday’s developments in court do not in any way vindicate Khobragade. At the same time, it is a signal triumph for Indian diplomacy, especially the team at the Indian embassy in Washington which, in effect, made the dismissal of her case possible.

According to the timeline of events in the episode, the embassy team in Washington extracted a letter from the state department on the night of January 8 permitting her change of visa from A-4, which is consular, to G-4, which is accreditation to international organisations, and granting her transfer from deputy consul-general to an equivalent post at the Indian mission to the UN.

The embassy team was aware that time was of the essence and that her transfer to the UN mission — which unambiguously gave her full diplomatic immunity — had to be facilitated before her indictment was unsealed in court.

The prosecutor, Preet Bharara, was also aware that time was of the essence and he advanced her indictment from January 13 by four days.

Accordingly, the grand jury met at noon on January 9 and indicted Khobragade, still unaware that she had acquired full immunity only the previous night.

It is this technicality that the judge has relied on now to let her off the hook by pointing out to Bharara and his team of prosecutors that they were wrong to indict her on January 9 when she was immune from arrest or prosecution in the US.

What it means is that if the grand jury had indicted Khobragade even one day before, the judge could not have found any ground to dismiss the case against her.

Ravi Batra, a New York lawyer who has represented the Government of India in several cases here, said last night that “judge Scheindlin’s order vindicates both judicial independence and judicial excellence. She rightly acknowledged diplomatic immunity and its consequential effect on the indictment unsealed on January 9. What is also clear is that on December 12, when Khobragade was arrested, she did not enjoy immunity from the arrest.”

For Khobragade personally, the tricky part of yesterday’s ruling is that the judge has left open the possibility of a fresh case against her on the same charges.

The judge observed that Khobragade’s immunity ended when she ceased to be a diplomat at the Indian mission to the UN and left for New Delhi on transfer. Since she no longer enjoys immunity from prosecution or arrest, Bharara is free to file a fresh case against her as an individual who no longer has any official status under US laws or international treaties.

“One can only hope that US attorney Preet Bharara’s exercise of prosecutorial discretion results in not re-indicting Khobragade,” said Batra. “There has been enough pain and suffering already both personally and bilaterally and we need these two countries to rejoin the call of destiny to help form a more perfect world.”

James Margolin, an official speaking for Bharara, was not so generous, however. “As the court indicated in its decision, and as Devyani Khobragade has conceded, there is currently no bar to a new indictment against her for her alleged criminal conduct, and we intend to proceed accordingly.”

Margolin’s assertion is based on a portion of the 14-page order which read: “Khobragade concedes that prosecution is clearly legally able to seek a new indictment at this time or at some point in the future now that (she) no longer possesses diplomatic status and immunity.”

If that happens, it will be her case and the Indian government will probably have no role in it. That may explain the external affairs ministry spokesman’s guarded and diplomatically correct reaction to yesterday’s ruling.

“We welcome this ruling, which dismisses the January 9 indictment against Khobragade and vacates any arrest warrant in the existing case. We note that the judgment does not consider the merits of the case.… Given the importance both sides attach to their bilateral strategic partnership, the government hopes to see further progress in this matter in a manner consistent with international norms and conventions.”